Specific Instance Process

Background

One of the functions of the NCP is to provide, in appropriate circumstances, a forum to assist MNE’s and interested parties (such as employee organizations or NGOs), in resolving questions regarding the consistency of an MNE’s activities with the Guidelines. A request for such assistance is referred to as a "specific instance." The NCP determines whether a specific instance merits its involvement based on procedural guidance developed by OECD Member states in consultation with stakeholders. This guidance is set forth in the Decision of the Council on the OECD Guidelines for Multinational Enterprises. The NCP undertakes its responsibilities in a manner that is impartial, predictable, equitable, accountable, and compatible with the principles and standards of the Guidelines.

Expectations of the Parties

The Commentary on the Procedural Guidance for NCPs states, "The effectiveness of the specific instances procedure depends on good faith behavior of all parties involved in the procedures. Good faith behavior in this context means responding in a timely fashion, maintaining confidentiality where appropriate, refraining from misrepresenting the process and from threatening or taking reprisals against parties involved in the procedure, and genuinely engaging in the procedure with a view to finding a solution to the issues raised in accordance with the Guidelines."

Establishing mutual trust in the specific instance process is an essential element for any successful effort by the US NCP to help parties reach a consensual resolution. All parties share a responsibility in this objective. The US NCP expects parties not to exploit or otherwise capitalize on information provided during the proceedings to prejudice another party. Examples could include a party publicizing the contents of its specific instance for tactical advantage over the other party, or a party intimidating or taking retribution against another party or affected persons as a result of a specific instance submission.

Confidentiality of communications is a basic tenet of the specific instance process. The US NCP expects parties to a specific instance to respect the confidentiality of all communications with the US NCP, beginning with the submission of the specific instance. The US NCP may consider a party's failure to honor expectations regarding confidentiality and trust to be bad faith, which could lead to the US NCP ending its involvement in the specific instance. In such situations, the US NCP, in its discretion, may issue a statement with an assessment of the circumstances leading to the termination.

Lead Responsibility Among NCPs

Normally, requests for assistance in specific instances should be raised with the NCP of the country in which the concern arose (the "host" country). If the host country does not adhere to the Guidelines and/or does not have an NCP, the issue should be raised with the NCP in the country where the enterprise is headquartered (the "home" country). NCPs in home countries and host countries are expected to consult with each other regarding their respective activities.

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